Immigration Law Commons^™

Terrorist Victim Or Perpetrator?: Foreign Solutions To Challenges Posed By The U.S.’S Terrorist Bars To Asylum, Stephanie Blum, Nadav Morag

Cardozo International & Comparative Law Review

This article analyzes the challenges presented by the U.S.'s Terrorism-Related Inadmissibility Grounds ("TRIG") for asylum applicants and looks overseas for potential solutions. TRIG is the method by which the U.S. government bars terrorists and those who materially support terrorism from obtaining asylum and related protections. TRIG, however, is overbroad and inefficient, encompassing terrorist victims who currently pose and never posed any threat to U.S. security. Specifically, TRIG does not consider duress, or the provision of trivial support, when analyzing whether applicants should be barred from asylum because of material support of terrorism. Additionally, current law defines a terrorist organization for …

Abolishing Ice Is Not Enough: Using Conservative Judicial Principles To Protect Unauthorized Immigrants From A "Tyrannical Bureaucracy", Ashley Dylenski

Cardozo Journal of Equal Rights & Social Justice

The note argues that abolishing ICE alone will not resolve the systemic issues plaguing the U.S. immigration system, as the root problem lies in Congress's overdelegation of authority to executive agencies. These agencies, operating under doctrines like plenary power and Chevron deference, wield broad discretion with minimal judicial oversight, leading to inhumane and unpredictable enforcement practices. The analysis advocates for resurrecting the nondelegation doctrine and reasserting congressional authority to restore separation of powers and ensure a more humane and transparent immigration system.

Covid 19 In U.S. Migrant Detention Centers: The Call For Freedom In The Face Of A Global Pandemic, Salma Rojas

Independent Study Project (ISP) Collection

My research paper investigates the responses of the U.S. immigration detention system to the COVID 19 pandemic and determines the capacity of the detention centers to keep detained individuals alive and healthy. As I analyze their capacities, I look to past detention center outbreaks, updated public health resources, reports on ICE facility conditions and the testimonies of migrant people who were detained during the COVID 19 crisis. The urgency of the COVID 19 pandemic is why I dedicate part of my paper to what needs to be done to prevent the situation from worsening. In drawing from these various sources, …

Morocco’S Leadership: Assessing The Relationship Between The State And Non-Governmental Organizations Working On Migration Affairs, Adriana Nadyieli González Ortiz

Independent Study Project (ISP) Collection

The history of Moroccan Non-Governmental Organizations (NGOs) is almost as long as the country’s history with migration. After Morocco's record as a sending country, its unique location attracted an increasing flow of migrants from the rest of Africa to transit the territory in hopes of crossing over to Europe. More recently, tighter border securitization has resulted in notable numbers of migrants permanently settling in Morocco. Significant changes in migration policy have both prompted and resulted from this progression. And simultaneously, national NGOs have strengthened their role as protagonist advocates for migrants’ rights as well as foremost providers of target-diverse support …

The Real Id Act: Real Consequences Involving Immigration Status & Eligibility Requirement Concerns For Immigrants, Rachael Marvin

Cardozo Journal of Equal Rights & Social Justice

The REAL ID Act of 2005 imposes federal documentation standards for state-issued drivers' licenses, requiring proof of lawful immigration status, which critics argue burdens immigrants and heightens government scrutiny. The Act raises constitutional concerns, including Fourth Amendment violations and interference with the fundamental right to travel, as established in Saenz v. Roe. While the Supreme Court in Arizona v. United States upheld federal preemption over state licensing authority, the Act's implementation has disproportionately affected immigrants, particularly under the Trump administration, which revived its enforcement. The article critiques the Act as an unconstitutional tool for immigration enforcement, undermining civil liberties …

Children's Equality Rights: Every Child's Right To Develop To Their Full Capacity, Nancy E. Dowd

Cardozo Law Review

Children are born equal. Yet as early as eighteen months, hierarchies emerge among children. These hierarchies are not random butfall into patterns by race, gender, and class. They are not caused nor voluntarily chosen by children or their parents. The hierarchies grow, persist, and are made worse by systems and policies created by the state, perpetuating the position of the privileged and continuing the disadvantage of the subordinated. Children's equal right to develop to their capacity is severely undermined by policies and structures that hamper and block the development of some by creating barriers and challenges or failing to support …

Mezei's Day In Court: Debtors' Prisons, Substance Abuse, And The Permissiveness Of Civil Detention In American Immigration Law, Conor Mcdonough

Northwestern University Law Review

American immigration law mandates the civil detention of certain classes of migrants while their legal cases proceed through the courts. Due to the peculiar nature of immigration law, many migrants find themselves detained for years on end without receiving the level of due process that normally attends imprisonment. This Note draws on historical and comparative analysis to argue that the mandatory detention provisions of American immigration law are not civil, but functionally criminal, and that detained migrants are therefore owed a modicum of due process that they do not currently receive.

This Note traces the history of immigration law in …

Trafficking To The Rescue?, Julie A. Dahlstrom

Faculty Scholarship

Since before the dawn of the #MeToo Movement, civil litigators have been confronted with imperfect legal responses to gender-based harms. Some have sought to envision and develop innovative legal strategies. One new, increasingly successful tactic has been the deployment of federal anti-trafficking law in certain cases of domestic violence and sexual assault. In 2017, for example, victims of sexual assault filed federal civil suits under the Trafficking Victims Protection Reauthorization Act (“TVPRA”) against Hollywood producer Harvey Weinstein. Plaintiffs argued that the alleged sexual assault conduct amounted to “commercial sex acts” and sex trafficking. Other plaintiffs’ lawyers have similarly invoked trafficking …

Essential Immigration Policy Reform: Reinventing The National Interest Waiver, Kevin Burns

Akron Law Review

Reasoned immigration policy has the power to positively influence the economy by supporting innovation, creating jobs, and advancing research and development; one such device to accomplish such economic goals is utilizing the National Interest Waiver (NIW). Under section 203(b)(2)(B) of the Immigration and Nationality Act (INA), congress provided a path to a green card for non-citizens with advanced degrees or exceptional ability without employer sponsorship if their admission is in the national interest: This is known as the "National Interest Waiver." This paper aims to discover the best ways to clarify the NIWs standards in its adjudication and to explore …

Crimmigrant Nations: Resurgent Nationalism And The Closing Of Borders [Table Of Contents], Robert Koulish, Martje Van Der Woude

Law

As the distinction between domestic and international is increasingly blurred along with the line between internal and external borders, migrants—particularly people of color—have become emblematic of the hybrid threat both to national security and sovereignty and to safety and order inside the state. From building walls and fences, overcrowding detention facilities, and beefing up border policing and border controls, a new narrative has arrived that has migrants assume the risk for government sponsored degradation, misery, and death. Crimmigrant Nationsexamines the parallel rise of anti-immigrant sentiment and right-wing populism in both the United States and Europe to offer an unprecedented …

Asylum Update: Ninth Circuit Deals Two Defeats To The Trump Administration, Peter Margulies

Law Faculty Scholarship

No abstract provided.

The Story Of A Class: Uses Of Narrative In Public Interest Class Actions Before Certification, Anne E. Ralph

Washington Law Review

When litigants in public interest class actions tell their stories, the narratives can advance the law and influence public debate. But before class members’ stories can vindicate civil rights on the merits, plaintiffs must overcome the hurdle of class certification.

For decades, obtaining class certification under Federal Rule of Civil Procedure 23 was not a significant challenge for plaintiffs seeking to litigate as a class. But recent restrictive procedural developments—including heightened standards for class certification—threaten the powerful stories that can be told through public interest class actions.

Missing in the critical analysis of class action jurisprudence is any discussion of …

The Substantial Impact Approach: Reviewing Policy Statements In Light Of Apa Finality, Emily Parsons

Washington Law Review

Federal agencies engage in a wide range of non-binding action, issuing guidance documents such as policy statements and interpretive rules. Although these guidance documents may have a substantial impact on industries or members of the public, courts often refuse to review their substance. The Administrative Procedure Act requires agency action to be “final” before courts can review it. The D.C. Circuit and the Ninth Circuit have taken conflicting and often messy approaches in determining whether interpretive rules and policy statements are final and thus reviewable. This Comment proposes a new approach: the substantial impact approach. Under this approach—repurposed from a …

The Trauma Of Trump's Family Separation And Child Detention Actions: A Children's Rights Perspective, Jonathan Todres, Daniela Villamizar Fink

Washington Law Review

In April 2018, the Trump Administration publicly announced a new zero-tolerance policy for illegal entries at the U.S. border. This action kicked off a wave of family separations that made headlines and drew criticism from around the globe. Despite resounding condemnation of these actions, the Trump Administration defended its family separation policy as a “tough deterrent.” At least 2,600 families were torn apart in the ensuing months. And subsequent reports—from both the government and others—have detailed widespread abuses of and substandard conditions for children held in detention centers. The consequences of these separations and the maltreatment of children in detention …

Limitations Of Washington Evidence Rule 413, Sarah Desautels

Washington Law Review

This Comment analyzes Washington State Evidence Rule 413 (ER 413). ER 413 renders evidence of the immigration status of criminal defendants, civil plaintiffs, and witnesses presumptively inadmissible at trial. The Washington State Supreme Court adopted ER413 in September 2018. It is the first of its kind in the nation. ER 413 provides a clear, uniform rule limiting the use of immigration evidence, an area where prior caselaw had created uncertainty. However, ER 413 falls short of its goal of promoting access to justice and protecting immigrants from jury bias without a supporting system that addresses (1) the dangers of implicit …

Extraterritorial Rights In Border Enforcement, Fatma Marouf

Faculty Scholarship

Recent shifts in border enforcement policies raise pressing new questions about the extraterritorial reach of constitutional rights. Policies that keep asylum seekers in Mexico, expand the use of expedited removal, and encourage the cross-border use of force require courts to determine whether noncitizens who are physically outside the United States, or who are treated for legal purposes as being outside even if they have entered the country, can claim constitutional protections. This Article examines a small but growing body of cases addressing these extraterritoriality issues in the border enforcement context, focusing on disparities in judicial analyses that have resulted in …

Sexual Violence And Future Harm: Lessons From Asylum Law, Shawn E. Fields

Utah Law Review

Sexual violence victims face unique and enduring safety risks following an assault. The legal system’s gradual shift from solely punishing offenders for past acts to protecting survivors from future harm reflects a recognition of this fact. But so-called “sexual assault protection order” statutes impose onerous “future harm” requirements – including proof by clear and convincing evidence that another sexual assault is imminent – that belies the realities of ongoing injury for victims and creates barriers to protection similar to the criminal justice approach to rape.

This Article suggests a different approach, one justified by a novel analogy to the refugee …

An Empirical Study Of Political Control Over Immigration Adjudication, Catherine Y. Kim, Amy Semet

Journal Articles

Immigration plays a central role in the Trump Administration’s political agenda. This Article presents the first comprehensive empirical assessment of the extent to which immigration judges (IJs), the administrative officials charged with adjudicating whether a given noncitizen will be deported from the United States, may be influenced by the presidential administration’s political preferences.

We constructed an original dataset of over 830,000 removal proceedings decided between January 2001 and June 2019 after individual merits hearings. First, we found that every presidential administration—not just the current one—disproportionately appointed IJs with backgrounds in the former Immigration and Naturalization Service, the Department of Homeland …

Cowboys And Indians: Settler Colonialism And The Dog Whistle In U.S. Immigration Policy, Hannah Gordon

University of Miami Law Review

The nineteenth-century Indian problem has become the twenty-first century border crisis. While the United States fancies itself a nation of immigrants, this rhetoric is impossible to square with the reality of the systematic exclusion of migrants of color. In particular, the Trump administration has taken the exclusion of migrants descended from the Indigenous inhabitants of Mexico and Central America to a reductio ad absurdum. This Note joins a body of scholarship that centers the history of genocide in the United States to examine what our settler colonial history means for today’s immigration law and policy. It concludes that the contemporary …

Book A Stay And Win U.S. Citizenship: Examining Birth Tourism As A Business Subject To Federal Regulatory Controls, Nicole Marie Laudick

Georgia Journal of International & Comparative Law

No abstract provided.